Fifteen almond growers and handlers participated in earlier legal challenges. As they saw it, the policy hands over domestic market share to unpasteurized imports from Spain and Italy.

Steve Koretoff, general manager at Kerman, Calif.-based Purity Organics, estimates the rule cost his business at least $250,000 in lost sales the first year and more since.

“We still have an unlevel playing field,” he said. “We’re at a disadvantage compared to anybody in the raw foods movement. People are buying our competitors’ product when they could be buying it from us and we’re right in their back yard.”

In her 30-page ruling, the judge found the pasteurization requirement consistent with the almond marketing order’s outgoing quality control provisions.

“Because the salmonella rule ensures that only salmonella-free almonds are sold, it is not unreasonable for (Vilsack) to have deemed it a minimum quality requirement that contributes to orderly marketing and serves the public interest,” Huvelle wrote.

“The summary judgment we had hoped for would have said the Almond Board of California and the USDA did not have the legal authority to rule on quality as it pertains to bacterial contaminants,” said Will Fantle, co-director of Wisconsin-based The Cornucopia Institute, which helped coordinate the legal action.

“We’re in this dilemma where we think people should be able to buy raw food if they want, but at the same time we need to be conscious of how a potential outbreak would affect our market,” he said. “We asked the board for mandatory sampling rather than mandatory pasteurization. If any product had a presumptive positive test, then you’d pasteurize that lot. The board for whatever reason didn’t feel that was an adequate safety net.

“It seems to me that if this was truly a public health issue, all almonds sold in the U.S. would have to fall under the rules and regulations California product is subject to.”

“The organic consumer in this country does not want their almonds pasteurized,” Nick Koretoff said. “The Europeans are selling unpasteurized almonds in our country and that’s killing us.”

Further court action is under consideration.

“We want to look at this very closely to see if there are grounds for continuing this legal battle,” Fantle said. “The judge was most interested in whether process had been properly followed. It’s unclear to me to what degree this addressed our fundamental concern about the authority of the Almond Board to even invoke this kind of food safety regulation, whatever the process.”

“We’re looking for a home for additional product,” he added. “We’ve been successful in expanding our market outside the U.S. to places not considered traditional almond markets. Organic is catching on in other parts of the world. But it took us a couple rough years.”